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Changes to the right to request flexible working

The Government recently committed to passing the Employment Relations (Flexible Working) Bill, thereby signalling its intention to change the rules governing the right to make a flexible working request. It is hoped that the proposed changes will increase the uptake of flexible working and thereby enable businesses to benefit from increased: productivity, staff retention and financial returns.

Under current legislation, employees have a right to make a flexible working request only after they have worked for their employer for 26 weeks or more and provided that they have not made any other flexible working request in the last 12 months.

The Government’s response to the consultation ‘Making flexible working the default’ has now proposed the following changes to the current system via the implementation of the following measures:

The right to request flexible working becoming a ‘day one right’;

The introduction of a requirement for employers to consult with the employee when they intend to reject their flexible working request;

Permitting employees to make two statutory requests for flexible working in any 12-month period;

Reducing the time the employer has to make a decision on a flexible working request from three months to two; and

The removal of the existing requirement that the employee must (in the application for flexible working) explain what effect, if any, the change applied for would have on the employer and how that effect might be dealt with

Whilst this has been hailed by some as a step in the right direction to promote flexibility and encourage growth, others are more sceptical. It remains to be seen how the revised rules will work in practice; clearly, no two workplaces are the same and what will work for one may not work for another. Such changes in legislation may have unintended consequences for workplace relations; for example, many employers will not look too kindly on a new employee who submits a flexible working request on their first day on the job.

Particularly, an employee who submits a flexible working request on the first day of their job may be therefore entitled to pursue a claim of Automatic Unfair Dismissal under Sections 47E or 104C of the Employment Rights Act, on the basis they were subjected to detriment or were dismissed because they made such request. Arguably, employers are now left vulnerable to employees’ exploitation of the right to request flexible working, as an employee may purposefully issue a sham flexible working application to fall under the protection of Section 104C and potentially dismissal.

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